British married to Brazilian

[Marcosvvv]

Good evening, I need some help to clarify if my wife can get the EEA family permit so.. some background.
I am English, she is brazilian.
We married in brazil in 2015 and the same year applied for the spouse visa for her to come to the UK at an expense... she recieved it and consequently came to live with me here in the UK - which was 3 years visa, now expired..
We ran into some financial difficulty and are two months late to apply for the extension on her visa, which I thought was no biggie but apparently now according to an immigration solicitor renders the 3 years useless and doesn’t qualify to extend it now to get route to ILR now she would have to leave the UK and start again from scratch which is in my opinion ridiculous, as I qualify all the rules financially etc.. She is still here visa expired but working as normal etc.

How would it be possible to get the EEA family permit?
Just both go to Brazil apply there and apply to get it and then come back?
What is needed for the application?
Do we even qualify for it?!

Really looking forward to some help and answers, because its not clear on the UKBA
Appreciate it!
Marcos

[Casa]

The Solicitor is correct. At present your wife has no legal right to work and is considered to be an overstayer she isn't covered by Section 3 of the Immigration Rules. Also be aware that your wife now has no free access to NHS facilities and any treatment will be charged at 150% of the cost. Any unpaid NHS bill risks the refusal of a future visa application.

If you were unable to meet the minimum income level, you should have submitted a FLR(FP) partner application, which is a 10 year route to settlement (ILR).

As you are only considered to be a British citizen, you don't qualify for an EEA permit. In order to take the Surinder Singh route under EEA Regulations, you would both have to re-locate to an EU state and move the 'centre of your life' there, before returning to the UK with your wife holding an EEA Family permit.

However, this would require you to remain in the EU state and exercise your Treaty rights there for at least 6 to 12 months (the longer period strengthens the chance of being approved). You would also have to demonstrate that you have been employed or studied there throughout your residence and have integrated in local life, learning the language, rented or purchased property etc.

With Brexit on the horizon, you have limited time left before this route is closed.

It would be quicker to re-apply for a spouse visa from your wife's home country.

Do you have children together?

[secret.simon]

Simply put, in order for EU law to be involved, the EEA citizen needs to have worked or otherwise exercised treaty rights in an EEA member-state of which s/he is not a citizen.

So, if you move to Ireland or Portugal, your Brazilian spouse can join you there under EU law. If you then return to the UK, after having exercised treaty rights in another EEA member-state, the provisions of EU law will continue to apply.

But EU law does not apply if you are resident in an EEA member-state of which you are a citizen and have never exercised treaty rights in another EEA member-state.

Your spouse can either return to Brazil and start the whole immigration process again (and yes, missing even a day, never mind two months is a huge biggie in immigration law and this will definitely impact any future naturalisation application that she may make years into the future) or you can move to another EEA member-state and look at settling there, given the uncertainties of Brexit. Ireland and Malta are relatively easy for English-speakers to settle in, while your spouse may find Portugal easier linguistically.

[Marcosvvv]

Thank you both for your swift reply,
I understand clearly now.

I earn well over the threshold to qualify her to get the visa but As I said we missed the date to apply.

I find the whole thing that she has to leave and reapply and start from scratch is over the top, so I am going to ask for you help in how to explore the surrinder singh route which is easy if I am not mistaken?
So I go to ireland, which I can as an EU citizen.
Rent a property and work there - how long before I can apply for her to get the EEA permit and excersice my rights for a family member to come join me?
Once here we do what? She has 6 months correct? Then she applies for a residence permit immeditately on arrival? Then if we are continually living in ireland together for over 6 months with proof of residing there etc what then how to we get back to jolly england?

Really appreciate your help! Thanks again for the swift responses

Marcos

[secret.simon]

I would urge caution on initiating the SS route so close to the Brexit deadline. The Home Office may feel that you are only trying to bypass the UK Immigration Rules and dismiss your applications.

The future of the SS route (and other routes granted by the EU courts under the EU treaties) is in doubt as they do not seem to be included in the Withdrawal Agreement (my interpretation is disputed by others).

If you are thinking of going down the EU route, plan on moving permanently to another EEA member-state. Then, if you can return, it will be a bonus. Do not plan on a return under SS.

If you are intent on returning to the UK, your wife returning to her country of origin and reapplying for a spousal visa under the UK Immigration Rules may be a better solution.

From within the UK, she could try to apply for FLR(FP) under the family and private life category, but that would put her on the 10 year path to ILR.

Whether she returns under SS or under a new spousal visa (by definition that means that either way she will have to leave the UK), due to her overstay in the UK, she will not be eligible for naturalisation for at least 10 years from the day that she regularised her residence.

[Obie]

Do you have any children MArcos.

I think you should take visa issue very seriously in future. It is not something you can merely sweep under the carpet. In the UK we have something call the "Hostile Environment policy" for migrant and the government will make life difficult for any mistake immigrant make. Even those in the UK lawfully, the government is seeking to remove them never mind your wife. You ought to take these matters very seriously.

[Marcosvvv]

How would it be possible to apply for the FLR whilst currently here in the UK?

And no we don’t have any children currently

[mkhan2525]

Without children you will struggle to succeed on FLR FP 10 year route unless there are compelling reasons why you cannot live with your spouse in Brazil.

You have two options, either apply for a new spouse visa from Brazil or take the SS route. The latter will be around at least until the end of the transistion period in Dec 2020 and those on this route who arrive before that date will be eligible for settled status after 5 years of residence despite SS route is not currently protected by the withdrawal agreement.

[Marcosvvv]

Thank you for your response!

So the only two viable options are new spouse visa or SS route. I would have to relocate to ireland in my case as I am from Liverpool, 30 min flight away.
How long would I have to relocate to ireland for to qualify for the SS route?
I could rent somewhere there tomorrow.. as its my right being an EU citizen correct? Would she still have to go back to Brazil to join me in ireland or could I apply for the EEA family permit for her whilst she is in the UK and she just hop across? It would be probably easier to do the new spouse visa BUT I would like to know how the SS is possible.
So upon getting a rental in ireland I would then do what just apply for the EEA permit?

[Casa]

Have you considered the financial cost of re-locating to Ireland (or another EU state)? Securing employment may take some time, depending on your professional skills and I believe that rental prices in the cities (where the work is) are high.

In order to demonstrate that you have moved the centre of your life there not purely as a means of 'circumventing the Immigration Rules', you may well have to remain there for 12 months or so. You will be unable to maintain a home in the UK during this time.

In my honest opinion, the surer and quicker route would be for your wife to return to Brazil and re-apply for a Spouse visa from there. Surinder Singh is generally for those who are unable to meet the requirements for a UK entry visa.

http://www.inis.gov.ie/en/INIS/Pages/re ... n-eutreaty

http://surinder-singh-route.info/how-do ... f-ireland/